FEDERAL COURT OF AUSTRALIA
AFD21 v Minister for Home Affairs [2021] FCA 4
ORDERS
WAD 201 of 2018 BETWEEN: AFD21
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- Case
- [2021] FCA 4
- Decision Date
CaseChat Overview and Summary
The court examined the legislative framework governing visa cancellation on character grounds and the Minister's decision-making process. It was necessary to assess whether the Minister had overlooked the applicant's claims about the risks he would face in Burundi and whether the Minister genuinely considered these risks. The court also needed to evaluate whether the Minister's finding that the applicant would integrate back into Burundi society was supported by evidence.
The court concluded that the Minister had considered the applicant's contentions and that there was no evidence of a failure to genuinely consider them. The court found that the Minister did not make a finding for which there was no rational or probative evidence, particularly regarding the applicant's integration into Burundi society. The court did not find any jurisdictional error in the Minister's decision and dismissed the application.
The final orders of the court were that the application be dismissed and that the applicant pay the respondent's costs of the application, to be assessed according to the court's Costs Practice Note.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The facts before me do not warrant the drawing of an inference that the Minister failed to consider (or to meaningfully consider or engage with, or to give “real consideration” or “genuine consideration” to, or otherwise to take account of, in any of the other ways that the authorities describe) the contentions that the applicant advanced as to what might happen to him if he is removed from Australia. It is far more likely that the Minister simply did not accept that the risks to which the applicant adverted (and of which the Minister was, on any view, conscious) gave rise to “another reason” for the purposes of s 501CA(4)(b)(ii) of the Act: in other words, that he addressed the applicant’s contentions in the manner that the full court described in Buadromo (above, [44]). That being the case, it is not appropriate to—and I do not—infer any want, on the Minister’s part, of relevant consideration of the point.THE “INTEGRATION” FINDING As has already been noted (above, [12]), the applicant sought to make much of the difficulties that would befall him if he were returned to Burundi. In the reasons published in support of the Non-Revocation Decision, the Minister made the following observations:28. In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that [the applicant] will face if removed from Australia to his home country of Burundi in establishing himself and maintaining basic living standards.29. [The applicant] is a young man of 24 years who does not suffer from any diagnosed medical or psychological conditions, although he has a history of alcohol and cannabis abuse. 30. I note [the applicant] has advised that he has no known family members or support in Burundi. I accept that he will face financial and practical hardship in establishing himself and maintaining basic living standards, and will undergo a period of adjustment, at least initially, until he is integrated back into its society.31. I acknowledge that [the applicant] is likely to experience practical and emotional hardship if he is removed from Australia and thereby separated from his mother sister and step-father.32. I find that [the applicant] will have similar levels of access to any available medical or economic support services that are generally available to other Burundi citizens in a similar position as [the applicant], although I recognise that these may be of a lower standard than those available to him in Australia. The applicant complains that the conclusion recorded in [30] of those reasons—that the applicant would “…undergo a period of adjustment, at least initially, until he is integrated back into [Burundi] society”—was one for which there was no evidential basis. By his written submissions to the court, he complained that (emphasis original):…there was absolutely no evidence to support a finding that the applicant would ever be “integrated back into” Burundi society, at least insofar as that conveys the notion that the applicant would establish his basic economic and social needs. How, one might ask, did the Minister expect that to occur? With the applicant having no family or social support in Burundi. With him possessing no meaningful skills to sell on the market. When he suffers from alcoholism, as well as from his traumatic experiences. When, as he had claimed but the Minister failed to consider except in a mechanical or formulaic way, he faced discrimination and risk of serious harm or death by reason of his mixed racial identity? The conclusion that the applicant would “integrate back” into Burundi society had no foundation in evidence and, as in Hands, exhibits jurisdictional error.